The coronavirus pandemic has raised a host of constitutional questions—including the interplay between state and federal governments in responding to the crisis; how government can function while adhering to social distancing; how emergency presidential powers may impact democratic norms; whether voting procedures need to be changed; and more. Here are some key takeaways on those topics from the experts who have joined host Jeffrey Rosen to explore them on the NCC’s We the People podcast over the past few weeks.
Lessons from history
Quarantines were actually a normal occurrence throughout early American history, according to public health law experts and We the People guests Polly Price and Ed Richards.
Richards explained that the colonies frequently practiced isolation in an effort to keep out infectious diseases.
“The colonies were basically fever ridden swamps,” he said. “The cities were ports. They had malaria, they had yellow fever, they had typhoid, cholera; the average life expectancy was probably 25 years in the cities. So, these were places where they were very familiar with these powers.”
Richards added the colonies practiced “public health” to the best of their abilities and exercised what today might be considered “police power” at the local level—practices that were widely accepted then.
“They were very deeply enculturated into the society,” Richards said. “There are not many Supreme Court cases directly on the point because the law was so well established that no one would have thought to challenge it.”
Eventually, overseeing isolation and quarantine became primarily a state power under the Constitution. It wasn’t until the nineteenth century that the federal government first got involved in regulating quarantines. At the time, yellow fever outbreaks entered the United States through southern ports, and northern states attempted to keep out the scourge by aggressively closing their borders in “shotgun quarantines.” Price shared insights from her research on those quarantines—in which Congress intervened.
“As far as I can tell, it's the first time that it adds to the federal government's quarantine authority, the ability to enforce such regulations as are necessary to prevent the introduction, transmission, or spread of communicable disease from one state into any other. And that's not really been tested before.”
Price said that authority was largely derived from the Constitution’s Commerce Clause.
The Supreme Court clarified Congress’ ability to act under the Commerce Clause in Morgan's Steamship Co. v. Louisiana Board of Health (1886), a case that said quarantine laws belong to a class which typically only the states may establish until Congress acts in the matter to preempt state action by covering the same ground or forbidding state laws. A couple of decades later, in Jacobson v. Massachusetts (1904), the Court held that a Massachusetts law requiring smallpox vaccination was a legitimate exercise of the state's police power to protect the public health and safety of its citizens. Richards further explained this decision.
“The danger of smallpox to the community greatly outweighed the individual dangers that a vaccine might suffer,” he said. Richards added that the decision affirms “the right of the state to endanger individuals for the benefit of society.”
Richards and Price compared one more historical event with the current crisis: the 1918 flu epidemic. They noted that, during that pandemic, the surgeon general of the United States asked localities to practice social distancing, and that the pandemic flu hit in waves, as some are predicting coronavirus might.
Price explained why not much caselaw arose from that pandemic.
“The Supreme Court, the federal courts are not really involved in this because it's such a state and local matter.” She added that during that pandemic “there was no attempt by the federal government to impose nationwide social distancing measures, as we'd call them today. They left those up to the state and local governments, and for better or worse, they're probably the best decision makers. They know the local circumstances.”
Price said she thinks that remains true today.
“I think it would be quite a calamity in many ways for the national government to take over the local decision making.”
Constitutional Rights
The strength of state power to regulate quarantines was also a theme on our episode exploring coronavirus and constitutional rights that featured First Amendment experts David French and Lata Nott.
French predicted that most judges will be unlikely to strike down measures seeking to promote public health in the midst of the pandemic.
“Right now on the front-end of this thing, I would argue that the state authority is at its absolute apex,” he said.
French and Nott evaluated numerous challenges to stay-at-home orders from individuals alleging that the state orders violated their civil liberties as protected under the Constitution.
First Amendment challenges
- Free Speech:
French mentioned that even the high level of state authority with respect to limiting liberties does not mean that protections including free speech protections are automatically relinquished. He referred to a controversy in Newark, New Jersey, where the city warned residents that “false reporting of coronavirus in Newark via social media will be criminally prosecuted” under the state of New Jersey’s “false public alarm” laws. French and Nott both emphasized that while the First Amendment does not protect speech that causes an imminent threat, rumors about coronavirus likely would not fall into that category. Further, French said that the New Jersey statute is not consistent with the First Amendment and likely would not survive a challenge in the right context. Nott added that local governments would be best served to combat coronavirus misinformation by sharing more credible information.
“I am very wary of a solution that involves our state government officials, our local government officials imposing criminal penalties on misinformation. I think that that is a very bad road for us to go down,” she said. “I think really the best solution here is to get [out] all the information possible” via transparent governments and the free press “and not put any restrictions on what people can post.”
- Free Exercise:
Another aspect of the First Amendment, the guarantee of free exercise of religion, has been impacted by stay-at-home orders which have necessitated closure of churches. French and Nott discussed the case of Florida pastor Rodney Howard-Browne and other faith leaders who have defied stay-at-home orders to hold services.
French argued that the governing case here is the Supreme Court case Employment Division v. Smith (1990) which held that neutral laws of general applicability restricting religious liberty are permissible.
“These closure orders do not specifically target churches and leave other large gatherings alone. They are in general blanket bans on large gatherings of all types, and so they’re a classic neutral law of general applicability under which a free exercise claim is going to fail,” he said.
Nott also pointed out that, in addition to being treated the same as other organizations, churches can still exercise religion remotely.
“I think that’s important because it does show you that when there are alternative means for religious organizations like churches and synagogues and mosques to reach their congregations,” stay-at-home orders do not “undercut the services that they provide people, and therefore it’s the least restrictive means . . . to prevent the spread of the virus,” she said. “Being able to provide a service remotely kind of speaks to the idea that, well, then we shouldn't jeopardize public health by allowing these kinds of mass gatherings.”
- Freedom of Assembly:
Several aspects of the First Amendment—freedom of assembly, speech, and religion—were the source of a lawsuit filed in New Hampshire challenging that state’s stay-at-home order banning gatherings of 50 people or larger. Three people challenged the order—one protesting the cancellation of political events, and two others challenging the closure of a church and Sunday school, and of restaurants.
The Merrimack County Superior Court in New Hampshire swiftly dismissed the lawsuit, holding, “The court cannot imagine a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.”
French reiterated that given the coronavirus’ highly contagious nature, bans on large gatherings are well within states’ police power and are going to be able to pass even the strictest of scrutiny from courts.
Nott agreed, noting that the New Hampshire law has a “sunset clause,” a date when it’s set to expire:
“That's best practice, I think, for this kind of emergency order because of course, the concern that people have when it comes to civil liberties in a time of crisis is that these emergency powers that enable governments to take actions that they wouldn't be able to do otherwise— that they might sustain long past the time when the crisis is over, that they can have a permanent effect on people's civil liberties. So having a time when it is going to end, and . . . requiring it to be justified and renewed when it does end, if it’s still necessary, I think that’s very important.”
Nott and French did add the caveat that the analysis may be different six months from now, or 18 months from now, whenever the crisis is less severe.
Second and 14th Amendments
Both gun stores and clinics that perform abortions have challenged stay-at-home orders in states where they have been deemed non-essential.
The National Rifle Association has sued New York, where gun stores were forced to close temporarily as non-essential businesses, and California, which left the decision of how to classify gun stores to counties. The NRA and other gun groups did however successfully lobby the White House to add gun stores to its list of essential businesses, which then prompted New Jersey to change its list and allow gun stores to stay open.
In Texas, on March 21, Governor Greg Abbott banned “nonessential” medical procedures, purportedly in an effort to preserve hospital capacity to treat patients with the coronavirus. The governor’s order applied to any type of abortion procedure unless it was necessary to protect a woman’s health, and remains in effect until April 21 unless it is extended. Abortion providers filed a lawsuit seeking to overturn the ban. On Tuesday, April 7 (after this podcast was recorded), the Fifth Circuit ruled that Texas can continue to prohibit abortions given “the escalating spread of COVID-19 and the state’s critical interest in protecting the public health.”
French drew a parallel between these two areas of litigation:
“The best argument that [gun rights advocates] would have is going to be similar to the best argument that say abortion clinics have to stay open . . . And that argument is essentially that unlike a restriction on First Amendment Free Exercise, where you can attend church virtually, rather than this being a mere burden on the right, it’s essentially an extinction of the right to keep and bear arms by barring people from any access to firearms at all. Now, that’s imperfect because there are private sales and other kinds of measures perhaps where a person could obtain a firearm lawfully, but that would be their strongest argument.”
French referenced the standard laid out by Planned Parenthood v. Casey in saying that a good argument could be made closing clinics due to COVID-19 constitutes an undue burden and an extinction of that right. He said, however, that a fact-specific inquiry would be necessary.
Nott noted that some have pointed to an underlying motive for clinic closures.
“Choice advocates have said that this is the use of a crisis basically to ban something that perhaps the state has wanted to ban, that may not necessarily protect public health further by banning it,” she said.
Fourth Amendment
One additional constitutional consideration Nott and French discussed is the usage of cell phone geolocation data (stripped of identifying information) by the Centers for Disease Control to track the spread of the virus. Nott expressed reservations about that practice:
“It is a problem because once you set up this kind of surveillance system, that could very easily be used to infringe privacy rights under the Fourth Amendment, infringe on First Amendment rights of assembly and free association. Because of course, you’re able to track very easily who people meet with, what political events they attend, what protests they attend, and so the surveillance system can be used in a lot of scary ways. A concern is that once you have that established, that it will be used beyond the scope of this crisis or this emergency. That can be a hard genie to put back in the bottle. So I do think that whatever system we develop has to have some pretty well laid out limits to how it can be used. What kind of data is stored? At what point will it cease operation? And so, while it could be a helpful tool, , there's a lot to be concerned about there.”
Function of Government
Experts expressed concern not just about the protection of civil liberties, but also about the function of government in the midst of social distancing. American Enterprise Institute Resident Scholar Norm Ornstein, and lawyer and podcast host Ken White discussed that topic on We the People, explaining some of those obstacles inhibiting institutions that are used to conducting business in-person, including Congress, the Supreme Court, and the criminal justice system.
Ornstein expressed concern that current rules do not allow for virtual meetings of Congress. Congress is currently away, but set to return April 20.
“We're left in a position where if members of the house were now all over the country, couldn’t get back to Washington, wouldn’t want to meet, with the social distancing requirements, we might not have a Congress at a time of grave emergency, which would be a tragedy,” Ornstein said.
Ornstein, who worked on governmental emergency preparedness post-9/11, has advocated for a constitutional amendment that would allow Congress to vote remotely, but only for 30 days, at which point the time period could be renewed. Recently, Senators Rob Portman and Dick Durbin introduced a bipartisan resolution to allow remote voting during national emergencies, but it has stalled.
Meanwhile, the U.S. Supreme Court has resolved to conduct its business remotely, announcing Monday that it would hear May oral arguments via teleconference. Although this episode was recorded prior to that decision, White had said such a move would make a lot of sense.
“There's really nothing about Supreme Court practice that can’t be done remotely and by computer these days,” White said. “The more that our institutions can return to some semblance of normality, even if it's normality by video, that’s going to promote more calmness and it's really going to help with the situation.”
White was, however, very concerned about lower courts’ decisions as they relate to incarcerated people.
“The real problem is that, as unprepared our healthcare system as a whole is for this, the prison system is orders of magnitude worse,” he said:
“Prison care, despite the best intentions of a lot of the people who do the day to day work, is simply completely inadequate even to address non-emergency, non-crisis, non-pandemic circumstances. So, particularly for people who have health problems who are at high risk, being in custody at this point can be a death sentence. And what we really need to see is a serious re-evaluation of who needs to be in custody right now.”
White noted that some incarcerated people may also see their trials delayed. While some state laws are more rigid, “the constitutional right to speedy trial is already more flexible,” he said. “And in general, courts have given the tie to the government on this one. Courts tend to be very deferential to things like court congestion and certainly disasters and emergencies that might delay a trial. So, unless we see this situation going on for more than a few months, I don't think you’re yet going to be running into statutory or constitutional problems with a right to the speedy trial.”
A Global Perspective
Of course, the problems facing the United States are also challenging countries across the globe suffering from the pandemic. From Hungary to Poland, to Israel to India to Turkey, and even here in the United States, various leaders’ responses to the coronavirus have highlighted weaknesses in their democratic systems that may continue to be present after the public health crisis is resolved. Constitutional and international law experts Kim Lane Scheppele and Deborah Pearlstein shed light on those issues on the most recent episode of We the People.
Scheppele and Pearlstein flagged elections during the pandemic as a major area of concern. They began by explaining the U.S. Supreme Court’s recent decision in the RNC v. DNC case in which the Court granted a request to block a lower-court order that had extended the deadline for absentee ballots to be submitted during the Wisconsin primary. The day of the primary, confusion about whether voters could mail in absentee ballots ensued, and many voters went to the polls, potentially risking their health. Scheppele and Pearlstein said they worry about the implications for democracy when simply going out to vote in public can present public health challenges for voters. Pearlstein argued that these challenges would be best addressed by implementing widespread vote-by-mail, and that Congress should make such arrangements as soon as possible.
“Preparing for big national elections requires a lot of advanced preparation and a lot of time, so if you wanted to do something critical—and most election experts recommend that we implement mail-in voting for the upcoming federal election, which would require a law passed by Congress to mandate—if you wanted to do that, it requires a lot of time and money to print ballots,” she said. “So the need for Congress to act soon, sooner rather than later, to mandate that all states allow, for example, no fault absentee balloting. . . is essential.”
Scheppele flagged that a more dramatic situation is unfolding in Hungary, where all elections have been cancelled until the end of the “emergency,” which currently has no official end. She asserted that Hungary has passed the “most draconian” emergency law anywhere in the world, resulting in Hungarian President Viktor Orban with the power to govern “literally by himself . . . with no one to tell him ‘no.’”
Scheppele mentioned that for countries like Hungary where democracy has already been under siege—which she referred to as a “sick democracy,” a pandemic such as this simply brings current problems further to the forefront.
Pearlstein agreed, saying that across the board, “whatever tendency a government has is magnified during a crisis.”
They further discussed that point when comparing the governmental responses in countries like the United States and the United Kingdom to those of Germany and South Korea.
Scheppele pointed out that, in the United Kingdom, where the Prime Minister Boris Johnson was hospitalized himself with coronavirus in serious condition— governmental failure to address the crisis head on led to lack of public trust and instability in democratic governance. She contrasted Johnson’s response with that of German Chancellor Angela Merkel, who was also quarantined because of exposure to coronavirus. Scheppele argued that Merkel’s forthrightness about her own illness and the pandemic combined with Germany’s actions in general resulted in increased public trust and a lower number of cases overall.
Further expanding on lessons that can be learned from all of those countries’ reactions, Scheppele and Pearlstein made the point that governments can threaten democracy with overreaction, while others might threaten the health and safety of a country through underreaction—and attempting to force a chief executive such as the U.S. president to act presents its own constitutional questions.
Overall, Pearlstein expressed the “hope” that “the pandemic and government's response to it help expose and highlight the problems that democracies worldwide are now facing.”
Scheppele concluded with a metaphor comparing the response to the pandemic as a canary in the coalmine regarding the state of constitutional democracies around the world:
“What we're seeing is that the virus is infecting not only people and spreading but the virus has been infecting democracies that have weak or damaged constitutions. So if you have a system already in place that isn’t robust, that hasn’t been maintained, that has weaknesses or that has the possibility of political gaming, then the kind of extraordinary powers that somebody needs to control a pandemic are precisely the kind of powers that you see undisciplined presidents grabbing, or, weirdly, in some cases, undisciplined presidents simply letting go because they just don't seem to care about the health of the general public. The virus actually shows which constitutions are sick, and the question is, how it is that we fix those constitutions?
... And to maintain the metaphor, it seems to me that one of the things we start needing to talk about is what looks like a constitutional vaccine so that this doesn't happen the next time.”
Jackie McDermott is Podcast Producer and Constitutional Content Specialist at the National Constitution Center
Lana Ulrich is Senior Director of Content and Senior Counsel at the National Constitution Center
